Rizos v. New York City Housing Authority

226 A.D.2d 323, 642 N.Y.S.2d 229, 1996 N.Y. App. Div. LEXIS 4629

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1996
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Norman Joslin, J.), entered February 22, 1995, which, after a jury trial, awarded plaintiff the principal sum of $150,000 against defendants New York City Housing Authority and Salvatore Alioto, unanimously affirmed, without costs.

It was within the province of the jury to disbelieve the defense testimony that there were scratches on the face of plaintiffs husband severe enough to warrant the arrest of plaintiff for assault in the third degree (see, Malte v State of New York, 125 AD2d 958, 959-960, lv denied 69 NY2d 607). In light of defendants’ burden of proving probable cause, the jury verdict for plaintiff on the false arrest claim therefore had a rational basis (see, Woodard v City of Albany, 81 AD2d 947).

Plaintiffs husband cannot be said to have been under plaintiff’s control, given the pattern of extreme domestic violence that continued, according to plaintiff, up to the time of trial on her tort claims. Thus, the trial court properly denied defendants’ request for a missing witness charge.

We have considered defendants’ remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Milonas, Ellerin, Nardelli and Williams, JJ.